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EXHIBIT 10.22
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into this 22nd
day of September, 1999, by HIGH SPEED NET SOLUTIONS, INC. ("HSNS"), a Florida
corporation, SUMMUS LTD. ("SUMMUS"), a Delaware corporation, and XXXXX XXXXXX,
an individual formerly employed by HSNS. HSNS, SUMMUS and Xx. Xxxxxx will be
referred to collectively as the "Parties."
RECITALS
A. Xx. Xxxxxx served as President of HSNS from March 15, 1999,
until April 20, 1999.
B. On or about March 1, 1999, HSNS and Xx. Xxxxxx executed an
Employment and Stock Option Agreement (the "Employment Agreement"), which
obligates HSNS to transfer to Xx. Xxxxxx certain stock options and contains
among others, provisions regarding non-solicitation and non-competition and
anti-dilution and adjustment provisions regarding the stock options. A copy of
the Employment Agreement is attached hereto as EXHIBIT "A."
C. On or about April 27, 1999, HSNS filed a lawsuit against Xx.
Xxxxxx in the United States District Court, Middle District of Florida, Orlando
Division, Case No. 99-513-CIV-ORL-19A for breach of the Employment Agreement and
damages (the "Lawsuit").
D. Xx. Xxxxxx has certain claims against HSNS, Xxxxxxx Xxxxxx,
Xxxxx X. Xxx, Xxxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxx, who, at various times were,
or still are, officers, directors or shareholders of HSNS.
E. The Parties desire to settle the Lawsuit and any and all other
claims, causes of action or rights that any of the parties may have against one
another.
TERMS AND CONDITIONS
For the mutual promises, representations, covenants and agreements, and
on the conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties respectfully represent, covenant and agree as follows:
1. HSNS agrees to pay to Xx. Xxxxxx One-hundred and Ten Thousand
and no/100 Dollars ($110,000.00), payable Sixty Thousand and no/100 Dollars
($60,000.00) immediately upon execution of this Agreement, and Twenty-Five
Thousand and no/100 Dollars ($25,000.00) on November 16, 1999, and December 16,
1999.
2. If HSNS fails to pay to Xx. Xxxxxx any payments as described
in paragraph 1 of this Agreement, the entire balance shall become immediately
payable to Xx. Xxxxxx.
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3. SUMMUS guarantees payment to Xx. Xxxxxx of all monies due
under this Agreement, and SUMMUS represents and warrants that it has sufficient
funds to pay the guaranteed amount upon HSNS' default.
4. If HSNS fails to pay to Xx. Xxxxxx any monies due and owing
under this Agreement, an ex parte judgment for the accelerated balance will be
entered against HSNS and SUMMUS without further hearing or action by the Court.
SUMMUS hereby consents to the jurisdiction of the United States District Court,
Middle District of Florida, Orlando Division, for the purpose of entry of a
judgment, if HSNS defaults on its obligations under this Agreement.
5. Contemporaneously with the execution of this Agreement, HSNS
shall execute a General Release in favor of Xx. Xxxxxx, in the form attached
hereto as EXHIBIT "B." The General Release shall include, but not be limited to,
the release of Xx. Xxxxxx'x obligations under the non-competition provisions of
the Employment Agreement.
6. Upon payment in full by HSNS to Xx. Xxxxxx, Xx. Xxxxxx shall
execute a General Release in favor of HSNS, Xx. Xxxxxx, Xx. Xxx, Xx. Xxxxxxxx,
Xx. Xxxxxxx, and SUMMUS in the form attached hereto as EXHIBIT "C."
7. Upon execution of this Agreement by HSNS, HSNS' claims against
Xx. Xxxxxx shall be released and waived. Until HSNS has performed all of its
obligations under this Agreement, HSNS shall hold the Lawsuit in abeyance. At
such time as all monies have been paid and stock options transferred to Xx.
Xxxxxx or the escrow agent, HSNS shall dismiss the Lawsuit with prejudice. Xx.
Xxxxxx'x right to pursue a counter-claim and third party claim against HSNS, Xx.
Xxxxxx, Xx. Xxxxxxxx and Xx. Xxxxxxx shall not be waived until HSNS has
performed all of its obligations under this Agreement.
8. Contemporaneously with the execution of this Agreement, HSNS
shall issue to Xx. Xxxxxx an option to purchase Two-Hundred Forty Thousand
(240,000) shares of common stock of HSNS, exercisable in whole or in part for a
period of five (5) years from the date of issuance, subject to the terms hereof.
Two Hundred Thousand (200,000) shares subject to the option shall be subject to
the provisions of the Employment Agreement and Annex "A" of the Employment
Agreement relating to the anti-dilution language, audit ability, and strike
price as is set forth therein. The anti-dilution provision shall be limited to
twice the amount of the anti-diluted options or Four Hundred Thousand (400,000)
shares. The remaining Forty-Thousand (40,000) stock options shall be exercisable
in whole or on part on or after July 1, 2000, and within five (5) years from the
date hereof, at the same strike price as set forth in the Employment Agreement.
Ten (10) business days after receipt of a written request from Xx. Xxxxxx, HSNS
shall provide all documentation and evidence of the number of anti-diluted
shares that Xx. Xxxxxx is entitled to under this Agreement. HSNS shall reserve
shares for issuance upon exercise of the option. Within five (5) days after HSNS
receives notice of exercise, together with the option exercise price, HSNS shall
deliver the shares to Xx. Xxxxxx and/or his designee.
9. The Parties shall hold confidential and not disclose to any
person or entity the facts underlying this Settlement, its terms, any
information about the facts or circumstances
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regarding the allegations of the Lawsuit and the allegations referenced in
paragraph D of this Agreement, except as necessary to report information for tax
purposes to the federal government, at which point the Parties may disclose to
their counsel and accountants the fact and terms of this Agreement only, or
except as may be required by law, including but not limited to all applicable
rules, regulations and interpretations of the Securities and Exchange
Commission.
10. If any of the parties receive any form of question or inquiry
about (i) the Lawsuit, (ii) the disputes between the Parties, (iii) the
allegations referred in paragraph D of this Agreement, or (iv) the settlement
contemplated in this Agreement, the party to whom such question or inquiry is
posed shall make the following statement (using these words or words to the same
effect) as the sole response to such question or inquiry:
"I am not at liberty to discuss it."
11. No party to this Agreement shall publish false or defamatory
statements about any other party of this Agreements or about the directors,
officers, employees, goods and services of such party.
12. HSNS represents that it has full corporate authority and the
necessary corporate approval to enter into and perform HSNS' obligations under
this Agreement and that this Agreement shall apply to all affiliates, parents,
subsidiaries, and divisions of HSNS. This Agreement shall be binding upon HSNS'
successors, assigns and any entity that purchases substantially all of HSNS'
assets or stock, including SUMMUS.
13. This Agreement represents the entire agreement between the
parties and may not be altered or modified, except in writing, duly executed by
all parties to this Agreement.
14. The laws of the State of Florida shall apply to this
Agreement.
15. In the event of any dispute or litigation between the parties,
the prevailing party shall be entitled to recover his cost of suit, expenses and
attorneys' fees.
16. Each party hereto agrees to perform all further acts and execute,
acknowledge, and deliver any documents which may be reasonably necessary,
appropriate or desirable to carry out the provisions of this Agreement.
17. This Agreement may be executed by facsimile, and in counterparts,
all of which shall be construed together as a single instrument.
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HIGH SPEED NET SOLUTIONS, INC.
By: /s/ Xxxxxx Xxx
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Its: CEO & President
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STATE OF NORTH CAROLINA
COUNTY OF WAKE
I HEREBY CERTIFY, that on this day personally appeared before me, an
office duly authorized to administer oaths and take acknowledgments, Xxxxxx, of
HIGH SPEED NET SOLUTIONS, INC., on behalf of the corporation, he/she, is
personally known to me or produced a driver's license as identification and
executed the foregoing Settlement Agreement and acknowledged before me that
he/she executed the same for the purposes therein expressed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at
said County and State, this the 7th day of January, 2000.
NOTARY PUBLIC
Sign: /s/ Xxxxx X. Xxxxxxx
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Print: Xxxxx X. Xxxxxxx
State of North Carolina at Large
My Commission expires: 3-24-2001
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XXXXX XXXXXX
/s/ Xxxxx X. Xxxxxx
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STATE OF NEW JERSEY
COUNTY OF SOMERSET
I HEREBY CERTIFY, that on this day personally appeared before me, an
officer duly authorized to administer oaths and take acknowledgments, Xxxxx
Xxxxxx. He is personally known to me or produced a driver's license as
identification and executed the foregoing Settlement Agreement and acknowledged
before me that he executed the same for the purposes therein expressed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at said County and State, this 22nd day of September, 2000.
NOTARY PUBLIC
Sign: /s/ Xxxxxxx Xxxxx
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Print: Xxxxxxx Xxxxx
State of California at Large
My Commission expires: Xxxxxxx Xxxxx
Commission # 1168075
Notary Public - California
San Francisco County
My Comm. Expires Jan 6, 2002
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SUMMUS LTD.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Its: CEO
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STATE OF NORTH CAROLINA
COUNTY OF WAKE
I HEREBY CERTIFY, that on this day personally appeared before me, an
officer duly authorized to administer oaths and take acknowledgments, Xxxxxxx X.
Xxxxxxxxxx, who is personally known to me or produced a driver's license as
identification and executed the foregoing Settlement Agreement and acknowledged
before me that he executed the same for the purposes therein expressed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at said County and State, this 7th day of January, 2000.
NOTARY PUBLIC
Sign: /s/ Xxxxx X. Xxxxxxx
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Print: Xxxxx X. Xxxxxxx
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State of North Carolina at Large
My Commission expires: 3-24-2001
